N.Y.'s Neighbors: Recognizing Same-Sex Couples Is Norm
New York Law Journal
New York has finally entered the global debate over the legal status of same-sex relationships. Governor Eliot Spitzer has submitted a bill to allow same-sex marriages, and on June 19, 2007 the state Assembly passed it. Although the state Senate is more resistant, this issue is not likely to go away.
One reason is that New York's failure to address the issue puts the state in increasingly stark contrast with its neighbors. Today, same-sex couples may join in marriage, civil union, or domestic partnership across much of the Northeast. But until now, New York has largely ignored the legal needs of these couples.
Same-sex couples already have the legal right to marry in three of New York's neighboring jurisdictions.
In 2003 and 2004, the high courts of Ontario and Quebec held that the exclusion of same-sex couples from civil marriage violated the equality guarantee of the Canadian Charter of Rights and Freedoms, Canada's bill of rights. The Liberal government of Prime Minister Jean Chrétien acquiesced in these decisions.
The high court of Massachusetts reached a similar conclusion under its state constitution in a landmark, 2003 decision, Goodridge v. Department of Public Health. When the court later rejected the Legislature's proposal to create civil unions as a remedy, same-sex marriage came to Massachusetts by court order in mid-2004.
Despite its origins in constitutional litigation, same-sex marriage subsequently received legislative affirmation in both Canada and Massachusetts. In 2005, the Canadian Parliament enacted a federal law that authorized same-sex marriage throughout Canada, and its constitutionality was affirmed by the Canadian Supreme Court.
In Massachusetts, legislative affirmation came indirectly. Twice, the Legislature provisionally approved constitutional amendments to overturn Goodridge and outlaw same-sex marriage. But in each instance, the Legislature ultimately rejected the measures. The second rejection's three-to-one margin has probably doomed serious debate about ending same-sex marriage in Massachusetts.
In addition to the jurisdictions that allow same-sex marriage, four more of New York's neighbors have granted same-sex couples all the state-law rights of marriage through the 'separate but equal' institution of civil unions.
Vermont innovated the concept in 2000 after judicial prodding. The state high court held in 1999 that denying marital rights to same-sex couples violates the state constitution's equality guarantee. Noting the previously existing regimes of same-sex registered partnerships in Scandinavia, the court left the Legislature free to remedy the constitutional violation through either same-sex marriage or a parallel institution. Civil unions were the result.
New Jersey followed a similar path. By 2004, it had voluntarily granted same-sex couples a limited set of marital rights through a statewide system of domestic partnerships. In late 2006, however, the state high court held that denying same-sex couples the full set of marital rights violated the state constitution's equality guarantee. As in Vermont, the court left the remedy to the Legislature, and it chose to establish civil unions.
In recent years, the idea of civil unions has become less controversial. In contrast to Vermont and New Jersey, Connecticut enacted a civil union law without judicial prodding in 2005, and New Hampshire did the same in 2007.
Besides the seven neighboring jurisdictions that authorize same-sex marriages or civil unions, two more have established statewide domestic partnership regimes. Because these regimes typically provide only a selective set of marital rights, they are both separate and unequal. Still, they do give some legal status to same-sex relationships.
Maine established a domestic partnership regime in 2004. It grants same-sex couples rights relating to probate, disposition of remains, and domestic violence. But Maine's regime falls far short of marriage or civil unions by omitting a wide range of marital rights, including those incident to divorce.
The District of Columbia also established a limited domestic partnership regime in 2002, but unlike Maine, the district significantly expanded it in 2006. The district now extends numerous tax, property, and inheritance rights to same-sex couples, and it also provides for alimony and property division in the event of a dissolution. Although the district's regime now comes closer to marriage or civil unions, it still falls somewhat short of them.
Express Prohibition of Marriage
In contrast to the nine neighbors that have established some form of legal status for same-sex couples, three others have gone in the opposite direction: They have expressly prohibited same-sex marriage.
In 1996, when courts in Hawaii once seemed poised to authorize same-sex marriage, both Pennsylvania and Delaware enacted statutes expressly barring same-sex couples from marrying in-state or gaining recognition of their out-of-state marriages. (Hawaii subsequently amended its constitution to immunize its marriage restriction from challenge, but the Legislature also granted same-sex couples a limited set of marital rights.)
Although Maryland also has an express prohibition, its 1973 statute derives from a different era and simply declares that only opposite-sex marriages are valid in the state. In 2006, however, a trial court invalidated that restriction as a violation of the state constitution's sex-equality guarantee. An appeal of that decision remains pending before the state high court.
Notwithstanding these statutory bans, none of New York's neighbors has taken the extreme step of amending its state constitution to prohibit the conferral of marriage or any other legal status upon same-sex relationships. A number of states outside the Northeast have done so.
While nine of New York's neighbors have granted some legal status to same-sex relationships and three have expressly denied such status, New York stands with only Rhode Island as Northeastern jurisdictions that have enacted little or no legislation on the subject at all.
In the past decade, New York has taken a few steps to address the legal plight of same-sex couples. Same-sex partners now have the right of hospital visitation, and one partner may now control the remains of the other.
But for the most part, same-sex partners remain strangers to each other in the eyes of the law. As noted by one court when attempting to resolve the property dispute of a separating, same-sex couple, 'Because New York State does not afford them a legal right to marry, they must use contractual, statutory, common law, and equitable vehicles to protect their interests in property.'
Although municipalities such as New York City and Albany have created domestic partnership registries, these local laws generally affect only municipally controlled benefits, such as spousal health insurance for municipal employees.
In 2006, the New York Court of Appeals rejected a Massachusetts-style constitutional challenge in Hernandez v. Robles. The court held that New York's Domestic Relations Law, though not directly addressing the question, implicitly limits marriage to opposite-sex partners. The court then upheld that restriction, concluding that the inability of same-sex couples to procreate provided a rational basis for limiting marriage to opposite-sex couples. But as the court itself observed, '[w]hether such marriages should be recognized is a question to be addressed by the Legislature.'
Making good on a campaign promise, Governor Spitzer has introduced a bill that would open marriage to same-sex couples. The law would give same-sex relationships a clear legal status, render unnecessary the often complex strategies for protecting same-sex partners in alternative ways, and would make available state-law rights that simply cannot be reproduced through contract or other private mechanisms. The law would relate only to 'civil marriage,' however, and would not compel any member of the clergy or religious institution to perform same-sex marriages.
Comparing New York to its neighbors in the Northeast, of course, views the issue from only one perspective. Other comparisons are certainly possible.
Nationally speaking, New York's relative inaction on the issue of same-sex relationships actually puts the state near the progressive end of the spectrum. The overwhelming majority of states have expressly banned same-sex marriage, many by state constitutional amendment. Outside the Northeast, few states have bestowed any form of legal status upon same-sex relationships.
At the federal level, the Defense of Marriage Act of 1996 defines marriage as an exclusively opposite-sex relation for all federal-law purposes. Even in states that permit same-sex marriage or civil unions, same-sex couples thus remain legal strangers under federal law. The effect is to deny hundreds of federal rights, including any mechanism for preventing the deportation of a foreign same-sex spouse.
Still, New York's inaction is no longer mainstream if viewed from other salient perspectives. With the exception of Alaska, for example, every state on the West Coast now provides some legal status for same-sex couples. So does much of Western Europe, including Belgium, Germany, Spain, Great Britain, France, and the Netherlands, as well as a number of democracies elsewhere on the globe, such as New Zealand, South Africa, and Israel.
The global debate about affording some legal status to same-sex relationships shows no signs of diminishing, and New York's relative inaction is likely to become increasingly out of place among its neighbors.
Even neighboring states that have established civil unions are now giving same-sex marriage a second look. Experience suggests that, in practice, people do not view civil unions as equal to marriage. Nor may they eradicate discrimination in employee benefits, hospital visitation, or other endeavors in which marriage confers respect.
Moreover, pressure for New York to act will increasingly come from another direction: same-sex couples who have already joined in marriage, civil union, or domestic partnership elsewhere. New York's civil service and pension systems have already decided to recognize out-of-state same-sex marriages, and cases raising similar issues have already found their way into court.
With few exceptions, married opposite-sex couples can cross state lines and continue to enjoy all of the rights of married persons in just about any jurisdiction they enter. The prospects of similar mobility for same-sex couples who have been joined in marriage, civil union, or domestic partnership, however, are exceedingly uncertain, with the federal government and most states asserting the largely untested power to ignore these legal relationships.
Continued legislative inaction may have either of two results. New York could find itself in the peculiar situation of invalidating same-sex marriages performed in the state but recognizing those celebrated outside the state, meaning its inaction would burden only same-sex couples who cannot afford a wedding trip to Canada. Or New York will increasingly become an interjurisdictional obstruction, as it forces same-sex partners to surrender their legal status at the border.
A third option, of course, would be for the Legislature to address the issue, as most of New York's neighbors have already done.
Christopher Rizzo is an associate at Carter Ledyard & Milburn where he practices in the litigation department and environmental practice group. Stephen Clark is a Professor of Law at Albany Law School and proprietor of the Web site 'Same-Sex Unions in the Conflict of Laws' at samesexconflicts.com.
Reprinted with permission from the July 13, 2007 edition of The New York Law Journal
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 Halpern v. Canada (Att'y Gen.),  65 O.R.3d 161 (Ont.); Hendricks c. Québec (Proc. gén.),  R.J.Q. 851 (Que.).
 798 NE2d 941.
 Reference re Same-Sex Marriage, 2004 SCC 79, 3 S.C.R. 698 (Can.).
 Baker v. State, 744 A2d 864 (Vt. 1999).
 Lewis v. Harris, 908 A2d 196 (2006).
 Some West Coast states, however, use the term 'domestic partnership' almost interchangeably with 'civil union.'
 Some states that have authorized civil unions have also expressly barred same-sex marriage, but they did so as part of a political package deal when creating civil unions for same-sex couples. See, e.g., CONN. GEN. STAT. ANN. § 46b-38nn.
 Deane v. Conaway, No. 24-C-04-005390, 2006 WL 148145 (Md. Cir. Ct. Jan. 20, 2006), review granted, 903 A.2d 416 (Md. 2006).
 N.Y. PUB. HEALTH LAW § § 2805-q, 4201.
 Minieri v. Knittel, 188 Misc2d 298, 300 (N.Y. Sup. Ct. 2001).
 855 NE2d 1.
 Id. at 5.
 1 USC § 7 (2000).
 See Adams v. Howerton, 673 F2d 1036 (9th Cir. 1982) (holding family unification provisions of federal immigration law do not extend to same-sex partners of citizens).
 These policies are currently facing legal challenges. See Lewis v. New York State Dep't of Civil Serv., No. 4078/2007 (N.Y. Sup. Ct. filed May 23, 2007); Godfrey v. Hevesi, No. 6896/2006 (N.Y. Sup. Ct. filed Sept. 7, 2006).
 E.g., Funderburke v. New York State Department of Civil Service, 822 NYS2d 393 (Sup. Ct. 2006) (rejecting claim that Canadian same-sex marriage entitled couple to spousal pension benefits), appeal pending, No. 2006-7589 (App. Div.); Langan v. St. Vincent's Hospital, 802 NYS2d 476 (App. Div. 2005) (rejecting claim that Vermont civil union entitled surviving partner to pursue wrongful death action), appeal dismissed, 850 NE2d 672 (N.Y. 2006).